134 Misc. 29 | N.Y. Sup. Ct. | 1929
Plaintiff, The Rector, Churchwardens and Vestrymen of Trinity Church in the City of New York, commenced this action on April 12, 1926, to recover $131,340 from the city and from Frederick L. Cranford, Inc., the contractor which constructed the subway in Trinity place during the years 1913, 1914 and 1915. The sum demanded represents the expenditure incurred by plaintiff in underpinning the western part of Trinity Church in 1925. It is plaintiff’s claim that the underpinning was necessary to counteract the settlement of this portion of the church structure and that the settlement was caused by the excavation work performed in Trinity place by the defendants.. The latter, in addition to a general denial, set up the defense of the Statute of Limitations. They assert that the action can be maintained, if at all, only on the theory that they impaired plaintiff’s easement of lateral support and thereby injured its property. They maintain that the provisions of subdivision 3 of section 48 of the Civil Practice Act are applicable, which provide that an action to recover damages for an injury to property must be begun within six years from the time the cause of action accrued. Plaintiff, on the other hand, disavows any intention of invoking the remedy suggested by defendants. It contends that it has been deprived of the easement of lateral support which formerly belonged to it and that it is suing for the taking of the property right embodied in that easement. Accordingly, it urges that the situation is governed by the twenty-year Statute of Limitations. (Citing Matter of Clark v. Water Com